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16 Cards in this Set
- Front
- Back
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Does the Charter apply to civil disputes? An accused has a right not to give evidence against themselves - what does this protect? When does this situation arise? |
NO! Self-incrimination; An accused who makes a statement outside of court may have unwittingly incriminated himself |
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What is conscriptive evidence? What are the two types of conscriptive evidence? |
Evidence which is generally obtained by the authorities from an accused person; 1. Testimonial evidence - a person gives a statement to the police which is introduced as evidence against them (rules about admissibility) 2. Non-testimonial evidence - a person provides evidence against himself without words (ex. breath sample/sobriety test) |
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What are 3 problems with conscriptive evidence? |
1. Tends to be unreliable 2. It compels a person to reveal their innermost thoughts 3. It creates a shift of responsibility to prove a case from the state to the accused |
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What is the significance of R. v. Stillman? What is the significance of R. v. White? |
Section 7 of Charter is breached if search is conducted without consent or legal authorization and intruded on the person's body in more than a minimal fashion; Statements by an accused can be used under certain circumstances; accused should be cautioned; statement needs to be made without promise, threat or coercion; state of mind of the accused must be of such that the statement is considered reliable |
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What is derivative evidence? |
Evidence that is derived from a breach of the accused's rights; Poison fruit from the forbidden tree; Inevitable discovery (may be admissible) |
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Which case describes the accused's right to silence? What must an accused's right to silence be? |
Rothman v. The Queen; not a right of no self-incrimination, but merely the exercise of a right to free speech; A choice; cannot be considered as a silent admission of guilt |
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Can incriminating evidence in a prior proceeding be used against an accused in a subsequent proceeding? An accused is not free to lie without fear of repercussions -- what is an exception? |
NO; Prosecution for perjury |
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What is the confession/ibrahim rule? How is voluntariness assessed? |
A statement made to a person in authority is not admissible unless it was made voluntarily; Oickle Rule: Crown must prove BARD statement was voluntary by showing the will of the accused has not been overborne by threats/promises, oppressive circumstances, or lack of an operating mind (no police trickery that unfairly took away an accused's right to silence) |
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The test for voluntariness is ____________? |
SUBJECTIVE: what might be oppressive circumstance to one person will not faze another (cannot be a list of objective factors that can be used to determine voluntariness) |
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Who constitutes a person of authority? Authority (2) |
Police officers, prosecutors, jailers, security guards, fire marshals Accused must honestly believe person to be in authority and belief must be reasonable |
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When acquiring evidence, what must the courts balance? |
The interest of putting all relevant evidence before the judge against importance of preserving individual rights & reputation of the justice system |
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Are the rights and freedoms contained in the Charter absolute? What section of the Charter deals with this, and what does it state? What test determines the criteria to limit a Charter right? |
NO; Section 1 confirms the rights of the Charter are guaranteed, but government is legally allowed to limit Charter rights when it is "demonstrably justified in a free and democratic society"; R. v. Oakes |
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What does the Oakes Test consist of? |
1. objective of measure limiting right must of sufficient importance to warrant overriding a protected freedom 2. the means chosen must be reasonable and demonstrably justified including a proportionality test: - measure limiting charter right must be rationally connected to the objective sought; measure must impair the Charter right as little as possible; proportionality between effects of measures limiting Charter right and objective referred to in the threshold requirement |
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What does s. 8 of the Charter protect against? It tries to balance ___________? What is the plain view doctrine? What does R. v. Belnavis set out? |
Protects individuals from unreasonable search and seizure (balances a person's right to privacy v. state's interest in crime prevention); A police officer may act without a search warrant if the evidence is in plain view; Subjective and objective element for the reasonable expectation of privacy: did accuse have an actual expectation to privacy and was that expectation reasonably held -- if no search warrant, presumed unreasonable |
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What does s. 9 protect? Do all detentions result in a breach of the Charter? |
The right for everyone not be arbitrarily detained/imprisoned; No - must determine if detention was arbitrary |
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What are the 2 remedies for Charter-infringed rights? |
s. 24(1) - anyone whose rights have been infringed may apply to obtain such remedy as the court considers appropriate and just in the circumstances 24(2) - evidence obtained that denied rights shall be excluded if it's admission would bring the administration of justice into disrepute |
